Matter of American University of Antigua v. CGFNS International

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 12, 2015 518292
________________________________

In the Matter of AMERICAN
UNIVERSITY OF ANTIGUA
et al.,
Appellants,
v MEMORANDUM AND ORDER

CGFNS INTERNATIONAL et al.,
Respondents.
________________________________

Calendar Date: January 5, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Cowan, Liebowitz & Latman, PC, New York City (J.
Christopher Jensen of counsel) and Law Offices of Leonard A.
Sclafani, New York City (Leonard A. Sclafani of counsel), for
appellants.

Winget Spadafora & Schwartzberg, LLP, New York City
(Kenneth A. McLean of counsel), for CGFNS International,
respondent.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for State Education Department and another,
respondents.

__________

McCarthy, J.P.

Appeal from a judgment of the Supreme Court (Gilpatric,
J.), entered March 8, 2013 in Albany County, which, in a
proceeding pursuant to CPLR article 78, dismissed the petition.
 -2- 518292

Petitioner American University of Antigua and its
undergraduate college, petitioner American International College
of Arts and Sciences-Antigua, operate a nursing school in the
country of Antigua and Barbuda. In 2010, graduates of
petitioners' nursing school applied to respondent State Education
Department and respondent Commissioner of Education (hereinafter
collectively referred to as SED) to verify their educational
credentials and to take the National Council licensing exam in
order to become licensed nurses in New York (see Education Law §§
6506, 6507, 6905). To satisfy the educational requirements as
graduates of a foreign nursing school, the applicants were
required to submit evidence to verify their credentials (see 8
NYCRR 59.2, 64.1). By memorandum of understanding (hereinafter
MOU) with SED, respondent CGFNS International contracted to
provide credential verification services to SED for foreign-
educated individuals applying for licensing as nurses (see 8
NYCRR 59.2 [c]). During the verification process, CGFNS received
a letter from the Prime Minister of Antigua and Barbuda
indicating that petitioners' nursing program met the educational
requirements for licensure in that country. When contacted, the
Nursing Council for Antigua and Barbuda at the Ministry of Health
represented that petitioners' nursing school was not recognized
and did not satisfy that country's requirements, and its
graduates are not eligible to take its nursing exam.

CGFNS thereafter informed the applicants that there was a
discrepancy regarding the nursing school's accreditation and that
it could not verify their credentials, and advised SED of the
conflict. SED sent letters to the applicants advising them that,
based upon the information received from the Nursing Council,
their nursing education was not acceptable for licensing in New
York (see 8 NYCRR 64.1 [a] [3]). During this process, the Prime
Minister sent additional correspondence indicating that
petitioners' nursing program was approved by the Ministry of
Health and qualifies as preparation for practice as registered
nurses.1 The applicants appealed CGFNS's finding to its Appeals

1
The Prime Minister further represented that "[t]he
Minister of Health has jurisdiction over the . . . Nursing
Council . . . and has[] the authority to approve and accredit
 -3- 518292

Committee, which adhered to the refusal to verify their
credentials, declining to resolve that country's "internal
differences or policy questions." In June 2011, petitioners
asked SED to disregard CGFNS's finding and review the applicants'
credentials, submitting a recent opinion of the Attorney General
of Antigua and Barbuda interpreting that country's laws to confer
authority on the Ministers of Education and Health – not the
Nursing Council – to determine whether nursing programs in
Antigua and Barbuda have met the requirements.

While SED review was pending, petitioners commenced this
CPLR article 78 proceeding, seeking (1) to annul CGFNS's refusal
to verify petitioners' program and to compel CGFNS to withdraw
its reports to SED denying verification, (2) to compel CGFNS to
verify those credentials for all of petitioners' graduates in the
future, and (3) to compel SED to accept the verified credentials
of petitioners' graduates. SED filed a pre-answer motion to
dismiss the petition as premature because it was still reviewing
CGFNS's findings, as well as its own initial denials of the
applications (see CPLR 3211 [a]; 7804 [f]). CGFNS served an
answer and requested dismissal of the petition. SED thereafter
advised petitioners by letter dated December 13, 2011, that it
accepted the representations of the Prime Minister, Minister of
Health and Attorney General of Antigua and Barbuda that
petitioners' nursing program is approved in satisfaction of the
requirements of 8 NYCRR 64.1 (a) (3), thereby overturning its
initial determinations to the contrary.2

At a hearing on the motion, CGFNS and SED argued that the
proceeding was rendered moot by SED's December 2011 determination
and SED represented that all of petitioners' nursing graduates
who had completed their applications had been approved the week
prior and notified of their eligibility to take the licensing

[petitioners' nursing program] notwithstanding any contrary
determination of the . . . Nursing Council."
2
With respect to six of the applicants who had submitted
complete applications, SED agreed to review those applications
for compliance with the remaining requirements for licensure.
 -4- 518292

exam. Petitioners argued that the proceeding was not moot.
Supreme Court dismissed the petition as to both CGFNS and SED,
finding that CGFNS had not made a determination subject to CPLR
article 78 review and that the proceeding was moot. Petitioners
appeal.

We affirm. CGFNS argues that it is not a "body or officer"
subject to CPLR article 78 (CPLR 7802 [a]) and that it did not
make a "determination" reviewable in this proceeding (CPLR 7803
[3]). CPLR 7802 (a) defines a "body or officer" against whom a
CPLR article 78 proceeding may be instituted to include, as
relevant here, "every court, tribunal, board, [or] corporation"
(emphasis added). CGFNS is a not-for-profit corporation. Courts
have recognized that corporations, both public and private, may
be subject to CPLR article 78 as quasi-governmental bodies
because they are "beholden to the [s]tate for their franchise or
charter or the exercise of their functions" (Matter of Weidenfeld
v Keppler, 84 App Div 235, 239 [1903], affd 176 NY 562 [1903];
see Bango v Gouverneur Volunteer Rescue Squad, Inc., 101 AD3d
1556, 1557 [2012]; Matter of Kickertz v New York Univ., 99 AD3d
502, 507 [2012], appeal dismissed 20 NY3d 1004 [2013]; Matter of
Sines v Opportunities For Broome, 156 AD2d 878, 879 [1989];
Matter of Gray v Canisius Coll. of Buffalo, 76 AD2d 30, 33
[1980]; Siegel, NY Prac § 558 at 989; § 564 at 1001-1002 [5th ed
2011]). As a corporate entity, CGFNS is a "body or officer"
subject to a writ of mandamus under CPLR article 78 (CPLR 7802
[a]; see CPLR 7803 [1], [3]; Matter of Sines v Opportunities For
Broome, 156 AD2d at 879; Matter of Gray v Canisius Coll. of
Buffalo, 76 AD2d at 33).

However, we agree with Supreme Court's conclusion that
CGFNS did not render a final "determination" regarding
petitioners' credentials or the applications3 that is subject to

3
The applicants themselves were not joined as parties to
this proceeding (see CPLR 1001 [a]), they did not attempt to
intervene (see CPLR 7802 [d]) and SED did not move to dismiss on
this ground (see CPLR 3211 [a] [7]). Thus, petitioners proceed
only on their own behalf and do not represent the interests of
the nonparty graduates or applicants, and the sole issue properly
 -5- 518292

CPLR article 78 review (CPLR 7803 [3]). Pursuant to its MOU,
CGFNS provides credentials verification to SED in which it
reviews documents and transcripts and prepares a report as to the
authenticity of those credentials, forwarding the documentation
to SED for a licensing determination. CGFNS submitted an
affidavit representing that it "makes no analysis or
determination as to the comparability or sufficiency of the
applicant's education or that the applicant has met any licensure
requirement." SED submitted an affidavit from its education
credential specialist attesting that SED "has the obligation
under New York regulations to make its own independent
determination that the applicants' education completed at a
foreign nursing preparation program meets the licensure
requirements." Further, with regard to these applicants, SED
"made an independent determination that [petitioners'] School of
Nursing does not meet the education requirements of the
regulations" and a decision by CGFNS regarding credentials "would
not supercede [SED's] responsibility to make its own independent
determination." This is consistent with the governing
regulations, which require foreign-educated applicants to
demonstrate that they graduated from "a general nursing course of
at least two academic years . . . that is satisfactory to [SED]"
and "the licensing authority or appropriate governmental agency
of said country [must] certif[y] to [SED that the program
constituted] preparation for practice as a registered
professional nurse" (8 NYCRR 64.1 [a] [3] [emphases added]; see
Education Law §§ 6905 [2]; 6906 [2]; see also 8 NYCRR 64.1 [b]
[3], [4]). Further, the regulations provide that "[t]he
verification of educational credentials . . . for authenticity
purposes . . . shall not constitute a determination by [SED] that
the licensure requirements have been met" (8 NYCRR 59.2 [c]
[emphasis added]). Consequently, CGFNS's report to SED declining
to verify credentials and decision not to resolve the conflicting
evidence obtained from officials of Antigua and Barbuda was "not
final" (CPLR 7801 [1]) and, therefore, did not constitute a
"determination" subject to CPLR article 78 review (CPLR 7803
[3]), as the authority to render a final determination is vested

before this Court relates to petitioners' credentials under the
regulations.
 -6- 518292

solely in SED (see Education Law §§ 6507 [4] [a], [b]; 6905 [2];
6906 [2]; 8 NYCRR 59.2 [c]; 64.1 [a] [3]). Thus, Supreme Court
properly dismissed the petition as against CGFNS.

Moreover, Supreme Court correctly concluded that SED's
December 2011 determination provided petitioners all of the
relief to which they were entitled and, accordingly, the petition
was properly dismissed as moot (see Saratoga County Chamber of
Commerce v Pataki, 100 NY2d 801, 810-811 [2003], cert denied 540
US 1017 [2003]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-
714 [1980]; Matter of Bryant v Board of Educ., Chenango Forks
Cent. Sch. Dist., 107 AD3d 1170, 1171 [2013]). That final
determination accepted the representations of the Prime Minister,
Attorney General and other officials of Antigua and Barbuda that
petitioners' nursing program satisfies the requirements of 8
NYCRR 64.1 (a) (3), fully resolving this disputed aspect of its
educational status. Petitioners' claim that SED could, at any
time, reach a contrary conclusion in the future regarding its
status is speculative and not ripe for judicial review (see
Matter of New York Constr. Materials Assn., Inc. v New York State
Dept. of Envtl. Conservation, 83 AD3d 1323, 1329-1330 [2011]).
Moreover, under the foregoing statutory and regulatory
provisions, SED always retains the authority to review the
adequacy of a foreign school's program, making relief as to
future certification inappropriate. Further, while the exception
to the mootness doctrine exists "permitting judicial review[]
where the issues are substantial or novel, likely to recur and
capable of evading review" (City of New York v Maul, 14 NY3d 499,
507 [2010]), petitioners have not persuasively demonstrated that
the exception should be invoked (compare Coleman v Daines, 19
NY3d 1087, 1090 [2012]).

Egan Jr., Lynch and Clark, JJ., concur.
 -7- 518292

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger
Clerk of the Court